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2017 Supreme(MP) 584
IN THE HIGH COURT OF MADHYA PRADESH
Prakash Shrivastava, J.
Rameshchandra and others v. Kailashchandra and another
Second Appeal No.42 of 2004 (Indore); against judgment and decree dated 22.10.2003 passed by First Appellate Court in Civil Appeal No.14-A/2002; Decided on 14.9.2017.
C.L. Yadav with Shyam Singh Thakur for appellants;
None for respondent No.1.
Headnote:fofufnZ"V vuqrks"k vf/kfu;e] 1963 & /kkjk 16 & foØ; dk djkj & djkj ds fofufnZ"V ikyu gsrq okn & 30-5-1986 dks djkj fu"ikfnr fd;k x;k vkSj izfrQy ds :i esa #i;s 12]000@& lank; fd, x, & dCtk lkSaik x;k & 'ks"k #i;s 12]000@& 29-5-1987 dks lank; fd, & izR;FkhZ ØŒ 1 }kjk #i;s 12]000@& izkIr djuk rFkk djkj fu"ikfnr djuk Lohdkj fd;k x;k & fdarq ;g fojks/k fd;k x;k fd 'ks"k izfrQy dk lank; ugha fd;k x;k vkSj djkj ds fu"iknu dh rkjh[k dks og vo;Ld Fkk & og djkj dh rkjh[k dks 18 o"kZ iw.kZ dj pqdk Fkk & iw.kZ izfrQy dk lank; fd;k x;k vkSj dCtk lkSaik x;k & djkj lE;d~ :is.k lkfcr fd;k x;k & okn lgh&gh fMØh fd;k x;k & vihy U;k;ky; us ,slh fMØh iyVus esa =qfV dh gS & vihykFkhZ@oknh lafonk ds fofufnZ"V ikyu dk gdnkj gSA , vkb vkj 1988 ,l lh 1796 rFkk , vkb vkj 2010 ,l lh 2953 vuqlfjrA ¼iSjk 3] 4 ,oa 10 ls 12½
Specific Relief Act, 1963 -- S.16 -- agreement to sale -- suit for specific performance of agreement -- agreement executed on 30.5.1986 and Rs.12,000/- consideration paid -- possession delivered -- remaining Rs.12,000/- paid on 29.5.1987 -- receiving of Rs.12,000/- and execution of agreement admitted by respondent No.1 -- but it was opposed that balance consideration not paid and he was minor on date of execution of agreement -- he completed 18 years on date of execution -- full consideration paid and possession delivered -- agreement duly proved -- suit rightly decreed -- appellate Court committed error in reversing such decree -- appellant/plaintiff entitled for specific performance of contract. AIR 1988 SC 1796 and AIR 2010 SC 2933 followed. [Paras 3, 4 & 10 to 12
1. This second appeal under section 100 of the CPC is at the instance of the plaintiff challenging the reversal judgment of the first appellate Court. Trial Court by the judgment dated 6.9.2000 had decreed the Civil Suit.No.34-A/1997 and the first appellate Court while allowing the Civil Appal No.
14-A/2002 by the judgment dated 22.10.2003 has reversed the judgment of the trial Court.
2. Undisputed facts are that the suit land was purchased by the respondent No.1 Kailashchandra from its earlier owner Jani Bai on 2.5.1978. Kailashchandra had entered into an agreement with the appellant on 30.5.1986 for sale of the suit land for consideration of Rs.24,480/- and had received part consideration amount and the possession was delivered to the appellant.
3. The appellant had filed the suit for specific performance of the contract and permanent injunction pleading that the respondent had entered into the agreement with the appellant on 30.5.1986 for sale of the suit land for consideration of Rs.24,000/- and had received Rs.12,000/- at the time of execution of the agreement and had delivered the possession to the appellant. As per the agreement the appellant was to pay Rs.480/- till 16.11.1986 and remaining Rs.12,000/- on 29.5.1987 and on receipt of this amount the registered sale deed was to be executed in favour of the appellant. The appellant had paid the full consideration amount but the sale deed was not executed by the respondent No.1 on the ground that the mutation and Rin Pustika was not prepared and later on respondent No.1 had disputed the receipt of the consideration amount.
4. The suit was opposed by the respondent No.1 admitting the execution of the agreement and also admitting that Rs.12,000/- was received by respondent No.1 and possession was delivered to the appellant but taking the plea that the appellant had not paid the balance consideration amount. A further plea was raised that on the date of execution of the agreement, respondent No.1 was minor and that the suit was barred by time.
5. The trial Court had decreed the suit and had directed the respondent No.1 to execute the sale deed of the suit land in favour of the appellant within 2 months and further directed the respondent No.1 not to interfere in possession of the appellant.
6. The first appellate Court has reversed the judgment of the trial Court on the ground that on the date of execution of the agreement, the respondent No.1 was minor, therefore, in view of section 11 of the Contract Act the agreement was void ab initio.
7. This Court has admitted the appeal vide order dated 13.4.2003 on following substantial question of law:-
“Has the lower appellate Court erred in basing his finding that Kailashchandra Patidar (R.1) was minor on the date of agreement i.e. on 30.5.1986 only on the basis of school certificate, without any specific evidence and without any definite proof of age and disregarding the fact that Kailashchandra Patidar (R.1) has appeared before the notary and got the document certified on 4.6.1986 and thereafter had continued to accept consideration under the agreement.”
8. Having heard the learned counsel for the appellant and on perusal of the record, it is noticed that both the Courts below have concurrently found that the agreement dated 30.5.1986 was executed by respondent No.1 in favour of the appellant. It has also been found that the appellant had paid part consideration amount at the time of execution of agreement and the possession of the suit property was delivered to him. The Courts below have also found that subsequently the entire consideration amount was paid by the appellant and the Rin Pustika was also prepared in 1993-94 but even thereafter the respondent No.1 had not executed the sale deed. The plea of the respondent No.1 about the fabricated entries and forged signature on the back side of the agreement relating to the receipt of the consideration amount, has not been proved. Even after recording the aforesaid finding, the fi
